Saturday, December 27, 2014

The legislature wants to amend the Constitution to allow the justices on the Supreme Court to select their own chief justice and to pass a statute setting a mandatory retirement age for judges. The latter does not require a constitutional amendment because the state constitution already empowers the legislature to set such an age at not less than 70. Current proposals would set the retirement age at 75.

I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.

It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.

The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.

But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.

There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)

Wednesday, December 17, 2014

I have a post on the streetcar project over at Right Wisconsin. The issue flips our common political assumptions in a number of ways.

Here is what is happening. Among other feats of financial ledgerdemain, the city wants to take $ 31,000,000 in tax revenue that is being generated by a project that is already underway - the 833 Building - and divert it to the streetcar. This money would undeniably be available if the streetcar was never built (the 833 project is already under construction) and, because of what the city proposes to do, cannot be made available for anything else.

It cannot be used for the schools.

It cannot be used to improve athletic facilities in the neighborhoods.

It cannot be used to rehabilitate inner city housing.

It cannot be used to fund community policing programs that might help to protect inner city residents while relieving tensions between the police and the minority community.

It cannot help build a new arena for the Bucks.

It cannot be spent for anything to help low income residents of Milwaukee.

It cannot be used to reduce the levy on a heavily taxed community.

Instead, it will be used to fund a transit technology that was the latest and greatest thing - in 1906. It will be used to fund a transit technology that is less energy efficient and slower than buses.

It will be used to fund a transit technology that was considered obsolete and counterproductive in the late 1940s. When the streetcar was offered for sale to Milwaukee's then-socialist government in the 1950s, the answer was no.

The justification for all of this is that it will be considered groovy by the well-heeled Millennials and empty-nested Baby Boomers that live downtown. These people don't actually need it, but they will like it. My colleagues and I joke that we will be able to ride the streetcar (which will stop close to our office on Burns Square) to the Milwaukee Club to meet with conservative donors at taxpayer expense. But, in reality, we won't. It will be quicker to walk.

Writing at Vox, left wing writer Matthew Yglesias calls the DC streetcar project the "worst transit project" in America and the case for a streetcar in densely populated DC is much stronger than it is here. This project is, at best, a naked exercise in redistribution from the less well off to the well heeled. In fact, it's boondoggle that will benefit nobody, If it's such a good idea - if it is more important than all of the things that I just mentioned - then why not let the people vote on it?

Monday, December 15, 2014

Because accountability - for both private schools participating in one of Wisconsin's three school choice programs will be an issue in the coming legislative session - we at the Wisconsin Institute for Law & Liberty released the first of what we expect to be a series of reports on the issue.

The first report is descriptive and is called, not surprisingly, "Let's Begin by Understanding Where We Are." The report describes and comments upon state accountability measures applicable in the choice and public sectors. It concludes that it is simply not possible to claim that the state holds public schools to a greater measure of accountability than private schools participating in the choice program or vice versa. (We do note, however, that accountability measures for schools in the choice program appear to be more immediate and the consequences more onerous.)

We do not claim that the accountability measures imposed on the schools in the choice program are "too strict." We did note that, "whatever one might think of the adequacy of these standards," the DPI's interpretation of them seems to be, in certain respects, more aggressive than state law provides. These issues relate not to the standard themselves, but to requirements that a single standard be chosen at the beginning of the school year and that DPI policy seems to rule out the exercise of statutorily mandated discretion in it s enforcements.

But we take no position in this report as to what the accountability standards should be. Our report was descriptive and comparative, not normative.

There is a reason for that and it goes back to the title of the report. We do not expect the standards to remain the same. We anticipate a robust debate about what they should be in which we expect to participate. But, as that debate begins, we thought it important to draw attention to what the standards are and to address, in part, the common argument that public schools are held accountable in a way that choice schools are not.

The recent story regarding the Ceria M. Travis Academy illustrates this. I - and WILL - are not familiar with the school and, for that reason, take no position on its recent difficulties. But however poorly the Travis Academy may be faring, it is hardly the only failing school in the city of Milwaukee. It is being held accountable. Are failing MPS schools - and there are plenty - facing the same consequences?

Wednesday, December 10, 2014

Following last month's elections, I was intrigued by David Haynes call - or at least longing - for greater civility in our political discourse. I share his objective and his interest in Jonathan Haidt's writings on the topic. I have some differences with Haidt who I think does not understand American conservatives, but that's a topic for another post. We'll get back to Haidt in a moment.

What does it mean to engage in civil discourse? I'd start by suggesting that it requires us to assume - until proven otherwise - the good faith of our opponents. If you find yourself believing that everyone you disagree with is monstrous or corrupt, you are almost certainly wrong. It also requires an openness to the facts; a willingness to at least adjust your argument in the face of the evidence.

Not one, but two Purple Wisconsin bloggers have endorsed - or come awfully close to endorsing - violence in the wake of the failure to indict Officer Darryl Wilson in the shooting of Michael Brown. They call it "disruption."

What are we to make of this? Imagine that a conservative blogger here called for secession from the Obama "regime" or wrote a jeremiad defending the need to "disrupt" society until the President respected the constitutional limits on his authority or until the rights of the "53 %" who fund our government are respected. Imagine that a blogger had written that "black people" ignore other black people who cause "white death" or were "cooperating" with violent black criminals. Imagine that a blogger had claimed that only a "scarce" number of black people were trying to be "dutiful members of the human race."

The call for - or tolerance of - "disruption" is a very extreme position. Now, of course, if I thought that the white people in the United States were engaged in a systematic campaign of genocide against black people - if I thought there was an "indefatigable pattern of black death at white hands" (in fact, interracial crimes are more likely to be black on white) - I'd call for "disruption" as well. But that would be an astonishing belief. To the extent it is based on a claim of deliberate indifference to widespread homicide, it implies that most of us are very bad people.

And if I thought these things, I would be wrong. While I suspect that race can race play a role in interactions between citizens and the police, there are, in fact, only relatively small differences in the likelihood that black or Hispanic - as opposed to white persons - will be stopped by the police. According to Justice Department statistics, blacks are slightly more likely than whites to report having been the subject of a traffic stop (13% v. 10%) or street stop (0.7% v. 0.6%). Roughly 1 % of the 25 % of all citizens who have had a face to face encounter with the police are subjected to force or the threat of force. The percentage for blacks (3.7% of those experiencing police encounters) is higher than that for whites (1.2%) or Hispanics (2.2%), but the fact is that the use of force or threat of force is a very rare event for blacks generally as well as for blacks who are stopped by the police.

But what about these differences in the reported use of force? A far left group called ProPublica calculates that young black males are much more likely to be killed by police as young white males (31/1,000,000 vs. 1.47/1,000,000), but this does not make such events frequent or even tell us much about police conduct. Statistically, young black males are also much more likely to commit homicides and other violent crimes (even though the overwhelming majority do not do so) and this is going to affect those numbers in ways that have nothing to do with bias. Are these police shootings justified? Is race a factor? We don't know. We do know that they are rare. While the numbers are disputed, it appears that two hundred African Americans are killed by the police each year. But there are over 6200 African American murder victims each year. Even if every one of the deaths caused by the police are unjustified or could somehow be eliminated, the impact on black victimization rates would be negligible. In a very large country, the law of large numbers will mean that there are always incidents - involving both blacks and whites - to talk about, but there simply is not an "indefatigable" parade of the improper use of force against black suspects.

Of course none of this means that we should ignore or minimize police brutality when it occurs (and it does). It does not mean that we should not take allegations of police misconduct seriously. It does not even mean that race is never a factor when interactions between young black men and police go wrong. But calls for "disruption" are predicated on claims that it is somehow "common" for police to wrongfully kill black people. That predicate is wrong. If there is an African American blood bath, it is not the police (or, for that matter, white people) who are causing it. If we are concerned about reducing black deaths, the police -as imperfect as they may be - are not where we should begin. Indeed, we need to acknowledge that the police are, on balance, the solution and not the problem.

In other words, if, to quote the hashtag, "black lives matter," we have remember that police protection is far more important for people in the inner city than it is for most of us in the suburbs. Black lives in the city are at risk in a way that the lives of people who live in safer areas are not.

So there is simply no justification for calls for - or the tolerance of - "disruption" which will, of course, harm innocent black folks already targeted with high levels of violence - not by the police - but by people that the police are trying to stop.

But returning to Haidt, moral positions are not always determined by the facts. Here, there seems to be a studied indifference to the facts - both of the Brown case itself and the larger issue of police misconduct. There is a certain power and self righteous frisson in imagining oneself to be a sentinel of justice against "indefatigable" oppression; to regard oneself as part of a scarce cadre of decent people. Against that, facts don't count for much.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.